Aquino v. Jones
Filing
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ORDER signed by District Judge Lawrence J. O'Neill on 5/13/2011 adopting 16 FINDINGS AND RECOMMENDATIONS; DISMISSING CASE with prejudice and case to count as a (Strike). CASE CLOSED. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DORIAN M. AQUINO,
CASE NO.
1:09-cv-01001-LJO-GBC (PC)
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Plaintiff,
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ORDER ADOPTING FINDINGS AND
RE COMME NDAT I ONS DIS MISSING
ACTION, WITH PREJUDICE, FOR FAILURE
TO STATE A CLAIM
Defendant.
(ECF No. 16)
v.
M. JONES,
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/ CLERK TO CLOSE CASE
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ORDER
Plaintiff Dorian M. Aquino (“Plaintiff”), a state inmate, is proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was
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referred to a United State Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 302.
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This action was filed on June 8, 2009. (ECF No. 1.) Plaintiff then filed a First
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Amended Complaint on November 16, 2009. (ECF No. 12.) On December 20, 2010, the
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Court dismissed the First Amended Complaint with leave to amend for failure to state any
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cognizable claims. (ECF No. 15.) Plaintiff was given thirty days to file an amended
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complaint and was warned that failure to do so would result in dismissal of this action. (Id.)
Plaintiff did not file anything.
On February 8, 2011, the Magistrate Judge
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recommended dismissal of action for failure to state a claim upon which relief may be
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granted. (ECF No. 16.) The Magistrate Judge warned Plaintiff that if he failed to comply,
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this action would be dismissed. Plaintiff was given thirty days to file an Objection to the
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Findings and Recommendations. Well over thirty days passed and, to date, Plaintiff has
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failed to file an objection or otherwise respond. As a result, there is no pleading on file
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which sets forth any claims upon which relief may be granted.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local rule 305,
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this Court has conducted a de novo review of this case. Having carefully reviewed the
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entire file, the Court finds the Findings and Recommendations to be supported by the
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record and by proper analysis. Because Plaintiff never filed an amended complaint, this
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action is subject to dismissal for Plaintiff’s failure to state a claim, as set forth in the Court’s
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December 20, 2010 Order, and also subject to dismissal for Plaintiff’s failure to comply with
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that same Order.
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Accordingly, IT IS HEREBY ORDERED that:
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The Findings and Recommendations, filed February 8, 2011, is ADOPTED;
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The instant action is DISMISSED WITH PREJUDICE for failure to state a
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claim and failure to comply with a Court Order;
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The Clerk of the Court is DIRECTED to close the case; and
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4.
This case shall count as a strike for purposes of 28 U.S.C. § 1915(g).
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IT IS SO ORDERED.
Dated:
b9ed48
May 13, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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